United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 22, 2005
_______________________ Charles R. Fulbruge III
Clerk
No. 04-40016
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BERNARD CUNNINGHAM,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:03-CR-844-ALL
_________________________________________________________________
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
This court affirmed the judgment of conviction and
sentence of Bernard Cunningham. United States v. Cunningham,
No. 04-40016 (5th Cir. Jan. 4, 2005). The Supreme Court vacated
and remanded for further consideration in light of United States v.
Booker, 125 S. Ct. 738 (2005). See Cunningham v. United States,
125 S. Ct. 2274 (2005). We requested and received supplemental
letter briefs addressing the impact of Booker.
In his original appeal to this court, citing Apprendi v.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
New Jersey, 530 U.S. 466 (2000), Cunningham claimed that 21 U.S.C.
§ 841(a) and (b) were unconstitutional. Because De Leon-Rocha did
not make this argument at the district court, we review for plain
error. See United States v. Pineiro, 410 F.3d 282, 285-86 (5th Cir.
2005).
Under the Booker holding that changes the Guidelines from
mandatory to advisory, there is error in this case because the
district court viewed and acted under the Sentencing Guidelines as
mandatory and not discretionary. Cunningham, however, cannot meet
his burden to identify evidence in the record suggesting that the
district court “would have reached a significantly different result”
under an advisory scheme rather than a mandatory one. United States
v. Mares, 402 F.3d 511, 521 (5th Cir. 2005), cert. denied, 126 S.
Ct. 43 (2005). After Cunningham continued to maintain his
innocence, the sentencing judge did explain to him that he could not
let him go free——some sentence was warranted. These comments, given
the mandatory minimum sentence that Cunningham faced, do not
establish that Cunningham’s substantial rights were affected, but
point instead to the judge’s explanation of the sentencing process.
As this court has held, a sentencing judge’s expression of “mere
sympathy” or “mere summary” of the law “is not indicative of a
judge’s desire to sentence differently under a non-mandatory
Guidelines regime.” United States v. Creech, 408 F.3d 264, 272 (5th
Cir. 2005). Further, the district court sentenced Cunningham in the
middle of the applicable Guideline range.
2
Because nothing in the Supreme Court's Booker decision
requires us to change our prior affirmance in this case, we adhere
to our prior determination and therefore reinstate our judgment
AFFIRMING Cunningham’s conviction and sentence.
AFFIRMED.
3